Can a Maryland town's zoning ordinance require a county to get town approval before building a public facility inside town limits?

Plain-English summary

Poolesville's zoning ordinance let publicly owned buildings and uses go up in any zone as a matter of right, and the Commissioners of Poolesville wanted to change that by requiring site plan approval from the town's Planning Commission and general approval from the town board before Montgomery County could establish any public facility inside the town's limits. The town's own attorney asked the Attorney General whether this was legally possible. The opinion concluded it was not: a municipality's traditional zoning power comes entirely from the General Assembly's statutory grant, and that grant was never intended to let a town control whether a home rule county could carry out the governmental functions it was created to perform on land the county owned within the town's borders.

Currency note

This opinion was issued in 1988. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Could a Maryland town's zoning board require a county to get the town's approval before building a government facility in town?
No, according to this opinion. The Attorney General concluded that a municipality's traditional zoning ordinance does not apply to a county's use of its own property for governmental functions, so Poolesville could not require Montgomery County to obtain town Planning Commission or town board approval before establishing publicly owned buildings or uses needed for county functions.

Did an earlier case requiring a county to follow a town's historic district rules mean towns could also control county zoning generally?
No. The opinion distinguished City of Annapolis v. Anne Arundel County, where the Court of Appeals had required a county to comply with a town's historic district ordinance before demolishing a historic building. The opinion read that decision as turning on features specific to historic area zoning, which only affects building exteriors and was needed to protect a value with statewide importance, unlike traditional zoning, which governs land use and building density and was found to be for the "advantage and convenience" of the town's own residents.

Did a case about parking meters on sidewalks near a courthouse give a town power over a county's building decisions?
No. The opinion reviewed Centreville v. Queen Anne's County, where the Court of Appeals let a town place parking meters on sidewalks next to a county courthouse, and concluded that ruling rested on the county's own abandonment of control over those specific public sidewalks over many years, not on any general town power to decide whether a county could build a facility on its own property in the first place.

Background and statutory framework

Poolesville's zoning ordinance permitted publicly owned or operated buildings and uses, including parks and recreational facilities, in any zone as a matter of right. The Commissioners of Poolesville proposed amending the ordinance to instead require site plan review by the Planning Commission and separate approval by the Commissioners themselves before any publicly owned or operated building or use could be established, applying to public uses the same site plan review standards otherwise used for privately owned uses in general commercial zones. The stated purpose was to give the town full control over whether public entities, including Montgomery County, could establish new public uses within town limits.

The opinion built its analysis on a line of Maryland cases addressing when local zoning binds the State or another government body. It cited City of Baltimore v. State and City of Baltimore v. State Dep't of Health and Mental Hygiene for the principle that the State's own use of property, or a private entity's use of State property for a genuinely public purpose, is not subject to local zoning control, contrasted with Youngstown Cartage Co. v. North Point Peninsula Community Co-ordinating Council, where a private entity's use of State land for a private purpose (a truck terminal) was held subject to zoning. It then reasoned by analogy from a leading treatise, 8 McQuillan Municipal Corporations, and out-of-state cases including Lauderdale County Bd. of Educ. v. Alexander, County of Los Angeles v. City of Los Angeles, and Edelen v. Nelson County, all supporting the general rule that municipal zoning ordinarily does not reach county-owned property absent a clear contrary legislative intent.

The opinion's central authority was City of Annapolis v. Anne Arundel County, in which the Court of Appeals required Anne Arundel County to comply with Annapolis's historic district ordinance before demolishing a historic structure the county owned. Rather than reading that case as establishing general municipal zoning power over counties, the opinion read the Court's own reasoning as drawing a sharp line between historic area zoning (which affects only building exteriors and was needed to protect an interest of statewide concern) and traditional zoning (which governs land use, building density, and location, and largely serves the "advantage and convenience of the people of the locality," quoting Centreville v. Queen Anne's County). The opinion also distinguished Centreville itself, where the Court of Appeals had allowed the town to place parking meters on sidewalks adjoining a county courthouse; the opinion read that outcome as resting on the county's own long-standing abandonment of control over those particular sidewalks, not on any town authority to control the county's underlying decision to build the courthouse.

Applying Perry v. Board of Appeals and Cardon Invs. v. Town of New Market for the proposition that municipal zoning power exists only to the extent the General Assembly grants it, the opinion concluded that letting Poolesville's Planning Commission and town board block county facilities the county determined were needed would improperly let the town interfere with the powers and duties the Maryland Constitution's home rule provisions gave Montgomery County under Town of Forest Heights v. Frank, and that this interference was not needed to serve any statewide purpose the way historic preservation was in City of Annapolis. The opinion therefore concluded Poolesville's zoning ordinance did not apply to governmental facilities the county owned or operated within town limits, and the town could not require county approval as a zoning prerequisite for those uses, while noting in a footnote that Montgomery County had itself offered to enter a memorandum of understanding to provide advance notice and comment to Poolesville on proposed county facilities.

Citations and references

Statutes:

• Poolesville Zoning Ordinance §4.1
• Poolesville Zoning Ordinance §5C
• Poolesville Zoning Ordinance §5C(3)
• Article XI-A of the Maryland Constitution
• Article 66B, §8.02
• Article 25A, §5(S)
• Article 23A, §2(a)
• Article 23A, §2B

Cases:

• City of Baltimore v. State, 281 Md. 217, 224, 378 A.2d 1326 (1977)
• City of Baltimore v. State Dep't of Health and Mental Hygiene, 38 Md. App. 570, 578, 381 A.2d 1188 (1978)
• Youngstown Cartage Co. v. North Point Peninsula Community Co-ordinating Council, 24 Md. App. 624, 630, 332 A.2d 718 (1975)
• Maryland Comm. for Fair Representation v. Tawes, 229 Md. 406, 412, 184 A.2d 715 (1962), rev'd on other grounds, 377 U.S. 656 (1964)
• Centreville v. Queen Anne's County, 199 Md. 652, 655, 87 A.2d 599 (1952)
• City of Annapolis v. Anne Arundel County, 271 Md. 265, 316 A.2d 807 (1974)
• County Comm'rs of Montgomery Co. v. Supervisors of Elections, 192 Md. 196, 200, 63 A.2d 735 (1949)
• Montgomery Citizens League v. Greenhalgh, 253 Md. 151, 160-61, 252 A.2d 242 (1969)
• Perry v. Board of Appeals, 211 Md. 294, 303-04, 127 A.2d 507 (1956)
• Cardon Invs. v. Town of New Market, 55 Md. App. 573, 588, 466 A.2d 503 (1983), aff'd, 302 Md. 77, 485 A.2d 678 (1984)
• Town of Forest Heights v. Frank, 291 Md. 331, 341-42, 435 A.2d 425 (1981)
• Lauderdale County Bd. of Educ. v. Alexander, 269 Ala. 79, 110 So. 911 (1959)
• County of Los Angeles v. City of Los Angeles, 28 Cal. Rptr. 32 (Cal. App. 1963)
• Edelen v. Nelson County, 723 S.W.2d 887 (Ky. App. 1987)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1988/Volume73_1988.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

Local Government—Municipalities—Counties—Zoning—Municipal Zoning Ordinance Does Not Apply to Montgomery County Facilities Located Within Town Limits.

March 23, 1988

Richard S. McKemon, Esquire
Town Attorney for Poolesville

On behalf of the Commissioners of Poolesville, you have requested our opinion concerning the applicability of the Town's zoning ordinance to county-owned facilities within the corporate limits of the Town. Specifically, you ask whether the Town may by ordinance require Montgomery County to obtain approval from the Town's Planning Commission and the Commissioners of Poolesville before establishing any publicly owned or operated building or use.
For the reasons given below, it is our opinion that the Town may not require the County to obtain the Town's approval as a prerequisite to establishing County facilities needed in carrying out the County's governmental functions.

                              I
         Proposed Zoning Ordinance Amendments

Presently, the zoning ordinance of the Town of Poolesville permits a "[p]ublicly owned or operated building and use, including community building and park, playground, picnic area, swimming pool and other recreational area" in any zone as a matter of right. E.g., Poolesville Zoning Ordinance §4.1. The Commissioners of Poolesville propose to amend the ordinance to make site plan approval by the Town's Planning Commission and general approval by the Commissioners of Poolesville prerequisites to the establishment of those uses.
The proposed amendment would impose on publicly owned or operated buildings and uses in all zones the site plan review requirements presently applicable to privately owned uses in general commercial zones. For those uses, a detailed drawing of the existing site and a plan of the proposed development must be submitted to the Planning Commission, which has authority to require modifications in the plan or to disapprove the plan. Poolesville Zoning Ordinance §5C. In making its decision, the Planning Commission must determine (i) whether the proposal meets all the requirements of the zone in which it is to be located; (ii) whether the proposed locations of structures, open spaces, landscaping, and pedestrian and vehicle ways are "adequate, safe and efficient"; and (iii) whether each proposed structure and use "is compatible with other uses and other site plans and with existing and proposed adjacent development." Poolesville Zoning Ordinance §5C(3).
This site plan review process is intended to achieve considerably more than simple technical compliance with the minimum standards expressly set forth elsewhere in the zoning ordinance:

The planning commission shall not approve the site plan if it finds that the development would not achieve a maximum of compatibility, safety, efficiency, and attractiveness; and the fact that a site plan complies with all of the stated general regulations, development standards, or other specific requirements of the zone shall not, by itself, be deemed to create a presumption that the proposed site plan is, in fact, compatible with surrounding land uses and, in itself, shall not be sufficient to require approval of the site plan.

Poolesville Zoning Ordinance §5C(3).
The proposed amendments' provision for additional approval by the Commissioners of Poolesville, approval not required for privately owned and operated uses, is apparently intended to empower the elected officials of the Town to determine the general appropriateness of public uses. The stated goal of the amendments is to give the Town full control over the establishment of those uses:

[T]he proposed amendments are necessary to ensure that governmental entities seeking to establish publicly owned or operated uses in town officially and formally consult with and obtain the approval of the Commissioners of Poolesville and the Planning Commission before establishing such uses. The amendments are necessary because of the substantial impact of such publicly owned or operated uses upon the public facilities of the town and its future development.

                                II
     Applicability of Town Zoning Ordinance to County

A. Case Law

   The Maryland appellate courts have held that the State's use of land leased from a private owner is not subject to local zoning control. City of Baltimore v. State, 281 Md. 217, 224, 378 A.2d 1326 (1977). Likewise, the use of State-owned land by a private entity for a public purpose is not subject to local zoning. City of Baltimore v. State Dep't of Health and Mental Hygiene, 38 Md. App. 570, 578, 381 A.2d 1188 (1978). However, the use of State-owned land by a private entity for a private purpose is subject to local zoning control. Youngstown Cartage Co. v. North Point Peninsula Community Co-ordinating Council, 24 Md. App. 624, 630, 332 A.2d 718 (1975).1

The State's immunity to local zoning controls derives from its sovereignty. 62 Opinions of the Attorney General 45, 49 (1977). Counties, however, "are not sovereign bodies, having only the status of municipal corporations ...." Maryland Comm. for Fair Representation v. Tawes, 229 Md. 406, 412, 184 A.2d 715 (1962), rev'd on other grounds, 377 U.S. 656 (1964). Like municipalities, counties have no inherent powers, receiving their power instead by delegation from the State.
Counties and municipalities serve quite different functions, however: "The powers and functions of the county, as distinguished from municipal corporations, have a direct reference to the general, rather than the local, policy of the government of the state. Municipal corporations are created principally for the advantage and convenience of the people of the locality." Centreville v. Queen Anne's County, 199 Md. 652, 655, 87 A.2d 599 (1952).

1
In Youngstown Cartage Co., the Court of Special Appeals held that the private entity's use of State-owned property for a truck terminal was not a public use because "[t]he public has no right to enter upon or make use of the subject property so long as appellant remains a lawful tenant thereof." 24 Md. App. at 630. Subsequently, in State Dep't of Health and Mental Hygiene, the Court of Special Appeals pointed out that "[t]here is no one definition of the phrase 'public use' which can be utilized in order to determine whether a use is public or private." 38 Md. App. at 575. Noting that many State-owned facilities may not be freely entered by the public, the court concluded that a private entity's home for children in need of supervision was a public use because it was used for the benefit of the general public, albeit the public could not freely enter the property. 38 Md. App. at 577.
In light of the decision in Youngstown Cartage Co., we think that any use of County-owned land for private purposes clearly is subject to the Town's zoning ordinance. Therefore, we will address only the applicability of the Town's zoning ordinances to buildings or uses owned or operated by the County in its governmental capacity.

As far as we are aware, no Maryland court has ruled directly on whether a municipality may apply a zoning ordinance like Poolesville's to a county. In general, according to a leading treatise, "[m]unicipal zoning regulations or restrictions usually do not apply to the state or any of its subdivisions or agencies, unless the legislature has clearly manifested a contrary intent. Thus, properties and the uses thereof may be immune or exempt from the operation of municipal zoning regulations where owned or controlled by counties ...." 8 McQuillan Municipal Corporations §25.15, at 39 (rev. 3d ed. 1983). See Lauderdale County Bd. of Educ. v. Alexander, 269 Ala. 79, 110 So. 911 (1959); County of Los Angeles v. City of Los Angeles, 28 Cal. Rptr. 32 (Cal. App. 1963); Edelen v. Nelson County, 723 S.W.2d 887 (Ky. App. 1987).
We have no reason to conclude that this State's law is otherwise. Indeed, the Court of Appeals has strongly suggested that a municipality's traditional zoning ordinance does not apply to a county government.
Ironically, in that case, City of Annapolis v. Anne Arundel County, 271 Md. 265, 316 A.2d 807 (1974), the Court of Appeals held that Anne Arundel County must comply with the historic district ordinance enacted by the City of Annapolis. Therefore, the county could not demolish a historic structure that it owned, without the approval of the city's Historic District Commission. Nonetheless, we think that the court's decision in that case indicates that a municipality's traditional zoning ordinance does not apply to a county's use of its property for governmental purposes.
In reaching its conclusion, the Court of Appeals pointed out that "there are substantial and significant differences between traditional zoning and historic area zoning, which indicate that the General Assembly by [the provisions of Article 66B concerning historic area zoning] intended that the political subdivisions owning land within a historic district be subject to the jurisdiction of the Historic Area Commission." 271 Md. at 291. First, traditional zoning is concerned with the use of land and the density and location of buildings on the land, while historic area zoning deals only with the preservation of the exteriors of buildings having historic or architectural merit. Thus, the application of the city's historic area zoning to the county's property would not interfere with the county's ability to use its property as necessary in carrying out its governmental functions. Id. Second, the purposes of historic area zoning cannot be accomplished unless the exteriors of buildings having historic or architectural merit are preserved regardless of the nature of the entity that owns them. 271 Md. at 291-92.
In addition, the court noted that Article 66B, §8.02 mandates use of the same procedure for establishing a historic district as that used for establishing or changing "areas and classifications of zoning." In the court's view, that express mandate indicated "that the General Assembly intended that the substance of the new legislation in regard to historic area zoning was to be different than that of traditional zoning, rather than the contrary." 271 Md. at 292 (emphasis in original).
In our view, the court's emphasis on the substantive differences between historic area zoning and traditional zoning strongly suggests that it would reach a different conclusion as to the legislative intent regarding the applicability of a municipality's traditional zoning ordinance to a county.2 We think that the factors on which the court focused, the possible interference with the county's use of its property and the need for that interference to accomplish a State goal, indicate a legislative intent that a municipality's traditional zoning does not apply to a county's governmental facilities.
We do not read Centreville v. Queen Anne's County, 199 Md. 652, 655, 87 A.2d 599 (1952), to suggest the contrary. In that earlier case, the Court of Appeals stated broadly that "[t]he powers of the counties under the general law of the State do not include the police power. The police power is delegated to the municipal corporations. The counties must comply with reasonable police regulations in the interest of the general welfare."3 Nonetheless, we do not believe that Centreville establishes a right of municipalities to control counties' use of county-owned property.
The court held that under the circumstances of that case, Queen Anne's County could not prevent the Town of Centreville from placing parking meters on sidewalks located on property owned by the county

2
In 62 Opinions of the Attorney General 45, 51 (1977), this office previously suggested this view. In that opinion, the Attorney General stated that a county liquor control board's liquor dispensary was not subject to a municipal zoning ordinance, whether the board was a State or a county agency, noting the distinction drawn between historic and traditional zoning in City of Annapolis.
3
At the time of the decision in Centreville, Montgomery County was the only county with a home rule charter, which it had adopted on November 2, 1948. County Comm'rs of Montgomery Co. v. Supervisors of Elections, 192 Md. 196, 200, 63 A.2d 735 (1949). Subsequently, the Court of Appeals held that the grant to home rule counties of authority under Article 25A, §5(S) to enact laws for the general welfare grants those counties full legislative power to adopt enactments within the police power. Montgomery Citizens League v. Greenhalgh, 253 Md. 151, 160-61, 252 A.2d 242 (1969). With respect to the legislative power of code home rule counties under Article XI-F of the Constitution, see 62 Opinions of the Attorney General 275, 290-99 (1977).

for its courthouse. The placement of the parking meters was an exercise of the town's right to control public ways, an exercise of the police power with which the county could not interfere.
However, the Court of Appeals did not ground its holding on any power of the town to control land use generally. Instead, it found that the particular sidewalks at issue were public ways as to which the county had relinquished control: The sidewalks had been used by the general public for many years without the county's objection or attempt to limit their use; the sidewalks were located inside the line of the original fence, which the county had removed; and the county had not objected to the town's earlier placement of parking signs around the courthouse property, nor to its placement of parking meters on the sidewalks along one side of the property. 199 Md. at 658. In light of those facts, the court concluded that "the county offered the sidewalks for the use of the public and the town's exercise of control over them established their acceptance for the purpose." Id.
Because the decision in Centreville is thus based on the county's abandonment of control over its sidewalks, it does not indicate that the sidewalks would have been subject to the town's control under other circumstances. Still less, in our view, does it suggest that the municipality had the power to determine whether the county would be permitted to construct a courthouse on the county's property in the first instance.

B. Analysis of Poolesville Proposal

Municipal corporations do not have inherent zoning power; that power derives solely from the statutory grant of the General Assembly. Perry v. Board of Appeals, 211 Md. 294, 303-04, 127 A.2d 507 (1956); 60 Opinions of the Attorney General 573, 573 (1975). Therefore, the municipal zoning power may be exercised only to the extent of the General Assembly's grant. Cardon Invs. v. Town of New Market, 55 Md. App. 573, 588, 466 A.2d 503 (1983), aff'd, 302 Md. 77, 485 A.2d 678 (1984). We believe that the traditional zoning authority granted to municipal corporations was not intended to apply to land owned by a county.
The application of a traditional municipal zoning ordinance to property owned by a county could interfere significantly with a county's ability to establish facilities or uses needed to carry out the county's functions. For example, the zoning ordinance amendments proposed by Poolesville would, if valid, appear to permit the Town's Commissioners to prevent Montgomery County from establishing a governmental facility if the Commissioners disagreed with the County's determination of the need for the facility. Thus, the proposed amendments could lead to disruption of the County's ability to carry out its functions.
Under Article XI-A of the Maryland Constitution, a home rule county like Montgomery County has the authority and duty to enact public local laws in the interest of the county as a whole. Town of Forest Heights v. Frank, 291 Md. 331, 341-42, 435 A.2d 425 (1981).4 In the exercise of that authority, a home rule county may provide governmental services in municipalities, services that the municipality may be unable to provide. 291 Md. at 345. If the county's use of property that it owns inside the boundaries of a municipality were subject to control by the town's zoning authorities, the town would be able to prevent the establishment of public facilities that the county had determined to be necessary for the general public welfare. We do not think that the General Assembly's grant of zoning power to municipalities was intended to restrict the ability of home rule counties to carry out the very functions for which they were created. Hence, we think that Poolesville's zoning ordinance does not apply to Montgomery County's property used for governmental functions, because the Town's regulation of those uses could impair the County's ability to carry out its functions.
Further, subjection of the County to the Town's zoning ordinance is not necessary to accomplish any statewide public purpose comparable to the preservation of structures of historic and architectural value. Cf. City of Annapolis, 271 Md. at 282. Indeed, the goals of any municipal zoning ordinance are quintessentially matters of "the advantage and convenience of the people of the locality," rather than of the State. We neither dispute nor devalue the interest of the Town's residents in the coordinated development of the Town. However,

4
At the time of the decision in Frank, Article 23A, §2(a) granted municipal corporations authority to enact ordinances "not contrary to the public general or public local laws and the Constitution of Maryland ...." The Court of Appeals concluded that the enactments of home rule county councils are "public local laws within the meaning of that provision." 291 Md. at 348-49. Accordingly, the court held that a county ordinance prevails over a conflicting municipal ordinance, unless that result would be inconsistent with the legislative intent embodied in a statute enacted by the General Assembly. 291 Md. at 350-51. That outcome was modified by the subsequent enactment of Article 23A, §2B, which provides that, except in specific cases, an ordinance enacted by a municipality under authority granted to it by a public general law or its municipal charter prevails over a conflicting county ordinance.

the Town need not have effective veto power over the County's use of the County's property to protect that interest.5

                                     III
                                Conclusion

In summary, it is our opinion that the zoning ordinance of the Town of Poolesville is not applicable to governmental facilities owned or operated by Montgomery County within the Town's corporate limits. Therefore, the Town may not, by an amendment to its zoning ordinance, require the County to obtain approval from the Town's Planning Commission and the Commissioners of Poolesville before establishing publicly owned or operated buildings or uses needed in carrying out the County's governmental functions.

        J. Joseph Curran, Jr., Attorney General
        C.J. Messerschmidt, Assistant Attorney General

Jack Schwartz
Chief Counsel
   Opinions & Advice

5
The County Executive of Montgomery County has offered to enter into a Memorandum of Understanding to provide for notice to and review and comment by the Commissioners of Poolesville on any proposed county facility within the Town. Letter from the Honorable Sidney Kramer, County Executive of Montgomery County, to the Honorable Charles W. Elgin, Sr., President, Commissioners of Poolesville (October 19, 1987). Of course, the General Assembly has power to require, by public general law, that charter counties generally consult with incorporated municipalities within their borders before locating public facilities in those municipalities. Indeed, the General Assembly may require joint decisionmaking as to certain facilities, if it deems that appropriate. See 67 Opinions of the Attorney General 254 (1982).